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People v. Alexander

Court of Appeals of Illinois, First District, First Division

June 5, 2017

KORY ALEXANDER, Defendant-Appellant.

         Appeal from the Circuit Court of Cook County. No. 12 CR 2253, Honorable Paula M. Daleo, Judge Presiding.

          JUSTICE HARRIS delivered the judgment of the court, with opinion. Presiding Justice Connors and Justice Simon concurred in the judgment and opinion.



         ¶ 1 The defendant-appellant, Kory Alexander, was found guilty by a jury of first degree murder. However, in a special interrogatory, the jury found that it had not been proven that defendant discharged a firearm during the commission of the offense. The trial court sentenced defendant to 40 years in prison on the first degree murder conviction.

         ¶ 2 Defendant raises several issues on appeal. Defendant argues (1) his first degree murder conviction should be set aside because of the jury's finding on the special interrogatory, (2) he was denied his right to a fair trial where the jury instructions implied that he could be guilty under a theory of accountability even though no accountability instruction was given, (3) the trial court committed reversible error when it refused to give defendant's "mere presence" jury instruction, and (4) the trial court committed reversible error when it instructed the jury on motive without first consulting the parties.

         ¶ 3 Based on the record before this court, we affirm defendant's conviction for first degree murder and find no errors regarding the trial court's handling of the jury instructions or the jury's question.

         ¶ 4 JURISDICTION

         ¶ 5 On March 7, 2014, a jury found defendant guilty of first degree murder. On April 1, 2014, he filed a motion for judgment of acquittal or, in the alternative, a new trial. On June 6, 2014, the trial court denied defendant's posttrial motion and sentenced him to consecutive terms of 40 years imprisonment. Defendant timely filed his notice of appeal on the same day. Accordingly, this court has jurisdiction pursuant to article VI, section 6, of the Illinois Constitution and Illinois Supreme Court Rules 603 and 606, governing appeals from a final judgment of conviction in a criminal case entered below. Ill. Const. 1970, art. VI, § 6; Ill. S.Ct. Rs. 603, 606 (eff. Feb. 6, 2013).

         ¶ 6 BACKGROUND

         ¶ 7 Around midnight, on November 22, 2011, the victim, Darion Mason, prepared to take his mother, Denise Mason, to her work. As the pair walked to the victim's car, Denise realized she forgot her earrings. She ran back into the house to retrieve the earrings, and the victim kept walking to his car. After retrieving the earrings, Denise was approaching the victim's car when she observed the silhouettes of her son in the driver's seat and an unknown person in the back seat. As she opened the door, shots rang out and Denise realized someone was shooting her son. She heard two gun shots and screamed "[H]elp my son, he's shooting my son." The police arrived and arrested defendant not far from the scene of the shooting. On December 22, 2011, the defendant was charged with six counts of first degree murder, two counts of unlawful use of a weapon by a felon, and four counts of aggravated unlawful use of a weapon.

         ¶ 8 At trial, the State called several responding police officers to testify as to the night's events. Bellwood police officer Eddie Morales testified that on November 22, 2011, at approximately midnight, he was on patrol when he heard two or three gunshots. The gunshots were coming from south of where he was located. In response, he turned off his headlights to conceal his vehicle and proceeded to the intersection of Bellwood Avenue and Jackson Street, which was approximately 100 feet away from him. Within seconds of arriving at the intersection, he noticed an individual in all black clothing wearing a dark hooded sweatshirt running northbound (toward the officer) on the eastside of Bellwood Avenue. Officer Morales was approximately 50 to 70 feet away and did not see anyone else at that time. It appeared to the officer that the person had something in his right hand. While the individual was still some distance from the Officer Morales, he exited his vehicle and demanded the individual stop.

          ¶ 9 The person did not respond and proceeded to turn eastbound on Jackson Street toward an alley. The person turned southbound into the mouth of the east alley on the 1000 block of Bellwood Avenue. Officer Morales drove his vehicle up to Van Buren Street and made a left-hand turn in an effort to continue to pursue this individual. He continued eastbound on Van Buren Street and then parked at the mouth of the alley. He then traveled on foot eastbound on Van Buren Street to Bohland Avenue, which is one block east of Bellwood Avenue. After losing track of the individual, Officer Morales saw the individual crossing Bohland Avenue. He continued eastbound until he saw a person cross over the alley. This individual was physically consistent with the person he had seen crossing Bohland Avenue. At some point, Officer Morales met up with other officers on the 1000 block of Linden Avenue where they detained an individual near the school on that block. In court, Officer Morales identified the defendant as the individual being detained. Approximately 5 to 7 minutes passed between the time when Officer Morales initially heard the shots and the time that defendant was in custody. During that time the officer had seen a car drive the wrong way down Jackson Street but could not identify it.

          ¶ 10 Officer Morales retraced the subject's steps back to where he initially saw the person and, in doing so, discovered several items. He found a black hooded sweatshirt and two gloves on the 1000 block of Bohland Avenue in the general area where he saw the person running. In the rear of that residence, he found a black semiautomatic handgun laying in the yard.

         ¶ 11 Bellwood police officer Scott Guliano testified that he heard a radio call from Officer Morales. Officer Morales made a request for additional units, and Officer Guliano responded immediately. In his marked car, he activated his emergency lights and sirens while traveling at a high rate of speed toward the area. He parked his vehicle in an alley just before Linden Avenue and just off Jackson Street. He exited his car and began searching for the suspect. At this point, he was joined by Officer Kevin Barnett, and the two proceeded to walk down Linden Avenue. As they exited a gangway approximately three houses in on Linden Avenue, Officer Guliano saw a black male with a black T-shirt and black jeans exiting a gangway. The officer's yelled, "Stop" and "Police." The black male then ran across the street. Officer Guliano identified the individual as defendant, Kory Alexander. Defendant was alone that night and it was only 35 to 38 degrees outside. The officers gave chase and eventually tackled the defendant near an elementary school.

         ¶ 12 Monica Hemingway testified that she was parked in front of her house on Linden Avenue near Jackson Street with her boyfriend in the early morning hours of November 22, 2011. The two were parked on the west side of the street. An elementary school is on the east side of the street. While in the car, she noticed police officers at different locations on the block. Monica then noticed an individual who was peeking out from a walkway on the side of her house. She described the individual as African-American but could not see any other features. She could not see his face. She contacted the police because she believed this person was trying to conceal himself. The individual then began walking slowly south on Linden Avenue. The police saw him and told him to stop. In response to the police's shouts, Monica saw the individual run but he was caught by police. She did not see anyone else out that night.

         ¶ 13 Officer Kevin Barnett testified that he was an officer with the Village of Bellwood and was on routine patrol on the midnight shift the night of the victim's death. In response to a radio distress call, he traveled to the intersection of Jackson Street and Linden Avenue in Bellwood. Upon arriving, he made contact with Officer Guliano. While the two were walking, Officer Barnett saw an individual run out from a gangway. They gave chase and eventually detained the individual. Prior to coming into contact with Officer Guliano, Officer Barnett saw a man in a yellow jacket exiting an apartment building on Linden Avenue. The officer never obtained any information from the individual because the man was obese and did not match the description of the individual for whom they were looking.

         ¶ 14 Officer Shawn Clark was employed with the Village of Bellwood and was working the midnight shift on November 22, 2011, when he received Officer Morales' radio call. Officer Clark traveled to the scene of the shooting. Upon arrival, he observed a Jeep with an open driver's door and the victim in the driver's seat, feet on the ground, head back, and unresponsive.

         ¶ 15 Hillside police corporal Michael Duffek testified he was on routine patrol on November 22 when he responded to the Bellwood police's call for assistance. Corporal Duffek was on Linden Avenue when he observed the defendant, run across Linden Avenue while being chased by other officers. He observed officers tackle defendant in the grassy area near the school on Linden Avenue.

         ¶ 16 Master Sergeant Jack Bridson testified that he was employed by Bellwood police as a master sergeant in investigations and was called to the scene. He initially examined the scene where the victim was shot and located three spent shell casings. He then relocated to 3608 Jackson Street where additional evidence was located. He collected a hooded sweatshirt, a leather glove, and a brown glove near the sweatshirt, which were admitted into evidence. He also recovered a Hi-Point .40-caliber handgun, which was admitted into evidence.

         ¶ 17 Detective Randy Bucker was a detective with the Bellwood Police Department and was on-call when he received an assignment regarding the shooting. He administered a gunshot residue test and a buccal swab of defendant. He identified the shirt and jeans which were taken off of defendant the morning he was arrested.

         ¶ 18 Dr. James Filkins testified that he performed the autopsy on the victim. The victim had two gunshot wounds to the left side of his head. The first bullet entered the skull and traveled through the brainstem causing death. The second gunshot entered the scalp; it traveled around the head between the scalp and the skull before exiting the back of the head. He could not determine how close the gun was to the victim's head when it was fired.

         ¶ 19 Dr. Mary Wong, a forensic scientist employed by the Illinois State Police, testified that she was asked to perform gunshot residue tests on various items recovered by the police. She tested the exterior of the two gloves, the exterior of both sleeves of the hooded sweatshirt, and defendant's pants for gunshot residue. Samples were also taken of defendant's hands to analyze for residue. The tests from defendant's hands were negative, as were the tests done on the hooded sweatshirt. The test on the leather glove was negative while the test on the brown glove was positive.

         ¶ 20 Tonia Brubaker, a firearm examiner with the Illinois State Police, examined the Hi-point handgun recovered from between the two houses near where the defendant was arrested. She also examined the bullets recovered from the victim's body. She concluded that shell casings recovered from the scene along with one of the bullets from the victim's body were fired from the recovered gun.

         ¶ 21 Eleanor Giacometti, a forensic scientist with the Illinois State Police, examined the firearm for latent fingerprints. She found one latent print located underneath the plastic grip on the handgun. She had to unscrew the grip to see the print and could not determine how long it had been there. It did not match the defendant.

         ¶ 22 Karina Gomez, another forensic scientist for the Illinois State Police, performed DNA testing. She analyzed DNA samples from the hooded sweatshirt and the gloves and compared them to the DNA of the defendant and the victim. The sample from the sweatshirt revealed a mixture of at least three people. She was able to extract a major human DNA profile and a minor human DNA profile. A major DNA profile occurs where one person deposits more DNA than another and a minor profile is essentially less DNA than what has been contributed by the major profile. The major DNA profile did not match either the defendant or victim's DNA. Gomez ran the major profile through a DNA database of convicted offenders, missing persons, relatives of missing persons, unidentified remains, and Illinois State Police staff members, which revealed an association between the major profile and a profile in the database, one Stanley Street. As to the minor DNA profile, Gomez determined that the defendant could not be excluded from having contributed to the profile.

         ¶ 23 Gomez was also able to recover DNA samples from both gloves. As to the cloth glove, the sample contained a mixture of DNA profiles (though no major or minor ones) from which defendant could not be excluded. However, the victim was excluded. As to the sample from the leather glove, she ...

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